Wright v. Groom

• Decision Date: 30 November 1912
• Citation: 246 Mo. 158,151 S.W. 465
• Parties: WRIGHT v. GROOM et al.
• Court: Missouri Supreme Court

151 S.W. 465

246 Mo. 158

WRIGHT v. GROOM et al.

Supreme Court of Missouri, Division No. 1.

November 30, 1912.

PLEADING (§ 236) — AMENDMENTS — DISCRETION — LAND DESCRIPTIONS.

Rev. St. 1909, § 1848, relating to amendments, is in aid and declarative of the common-law rule that amendments were peculiarly within the sound discretion of and favored by the courts; hence, where, in ejectment, the court ordered a survey which survey differed from a prior survey, throwing the land into a different section, a refusal to allow plaintiff to amend the description in his petition would have been gross error, he claiming by limitations.

Appeal from Circuit Court, Shannon County; W. N. Evans, Judge.

Action by Armanda J. Wright against Arch Groom and another. Judgment for plaintiff, and defendants appeal. Affirmed.

A. H. Livingston, of Westplains, for appellants. Swain & Sizemore, of Eminence, Shuck & Cunningham, of Eminence, and L. O. Neider, of Mansfield, for respondent.

LAMM, J.

Ejectment in the Shannon circuit court. Defendants (claiming a departure) challenge an amended petition by motion to strike out. Unsuccessful, they refuse to appear further, stand on their motion, suffer judgment, duly except, and appeal. The departure is said to arise in an amendment changing the description of the land. Monthly rents and profits, damages, date of ouster, and parties are the same in both petitions. The change in description appears in the following excerpts, one from the first and the other from the last petition:

                    Original Petition.            Amended Petition
                  "Beginning at the             "Beginning at the
                southeast corner of section   northeast corner of section
                15 in township 27,            twenty-two, in township
                range 6 west, running         twenty-seven north
                thence north four rods;       range six west, running
                thence west eighty rods;      thence south one hundred
                thence south four rods;       feet, thence west eighty
                thence east to the place      rods, thence north ninety-two
                of beginning, containing      feet, thence east
                two acres, more or less;      eighty rods to the place
                the same being a part of      of beginning, containing
                the southeast quarter of      three acres more or less
                the southeast quarter of      the same being a part of
                section 15, in township       the northeast quarter of
                27 north, range 6 west."      section twenty-two, in
                                              township twenty-seven
                                              north, range six west."
                

Comparison shows that the township and range are the same, and, since section 22 always lies adjoining and south of section 15 in the same township and range, it follows that the northeast corner of 22 coincides with the southeast corner of 15; therefore, though the verbiage differs, the point of beginning in each description is the same. It will be observed, further, that the east and west distances, 80 rods, are the same; hence (since the beginning point is the same) the north line of the second description in point of fact coincides with the south line of the first description. Moreover, it is apparent that the description in the amended petition is of land lying immediately south of that described in the first, the amendment covering a trifle more land.

An additional abstract of the record proper furnished by respondent shows that at appellants' instance and request, after issue joined on the first petition (and before the filing of the amended petition), the court ordered a survey of the tract in dispute, and to that end continued the cause. As a sensible convenience in determining disputed land titles, such request and order are within a statutory power (R. S. 1909, § 11,299; Id. § 11,305); and, as the court ordered the survey to be made by the county surveyor, presumably the order was made under section 11,299. Out of excess of abundant caution the order was directed to a board of three, to wit, the surveyors of Dent, Oregon, and Shannon counties. This excess of caution did not vitiate the order; for the maxim is: Abundant caution injures no man. Two of them (the surveyors of Oregon and Shannon) served; and the record shows they made return to the order, filing a plat of their survey, which plat is submitted to us. This plat shows that the trouble in description had its root in where the true line of division between said sections 15 and 22 actually lay, and was marked on the earth's surface. It seems that by a former survey that line was located so far south of where the county surveyors, acting under the order of the court, located it, that a description of the disputed tract at the time the suit was brought put it on the south side of the southeast quarter of the southeast quarter of section 15, as the original petition did; whereas, the survey ordered by the court shoved the division line between those two sections to the north several rods. The record also shows that, after the survey and plat thereof was filed, plaintiff filed her amended petition, and thereby accepted the last survey and described the land in dispute accordingly. It is allowable to say that presumably plaintiff relied on the old survey in drawing her original petition, and on the new in drawing her amended petition. The judgment shows that plaintiff's title was by limitation; and, while the area of the second description a little exceeds the area of the first, there is nothing to show that the actual land on the earth's surface, actually in defendants' possession and actually claimed by plaintiff, was any other or separate tract than that intended to be sued for in both descriptions. In other words, the actual land, the real thing, the subject-matter of the suit (apart from the mere arbitrary and conventional description of it), was the same under each petition. So the ouster complained of was the same, and for aught appearing here the muniments of title would be the same. Certainly the parol evidence of title by limitation would naturally be the same under both petitions.

Under such circumstances, we are of opinion the motion to strike out was well ruled.

This, because:

(a) At common law the power of amendment (subject to limits not pertinent here) was considered an essential incident of the exercise of all judicial power. 1 Ency. of Pl. and Pr. p. 508. Therefore, even at common law, amendments were peculiarly within the sound (that is, judicial) discretion of the court. Chouteau v. Hewitt, 10 Mo. loc. cit. 134. Speaking generally, at common law the amendment of pleadings was regarded as a matter so exclusively addressed to the discretion of the trial court that its allowance or refusal could not be reviewed upon error. 1 Ency. of Pl. & Pr. p. 524. Broadly, the statute on amendments, applicable here, is in aid and declarative of the common law. Vide Chouteau Case, supra. Accordingly, it has always been construed most liberally to further its benign purpose. Amendments are favored by courts. House v. Duncan, 50 Mo. 453. They avoid delay in joining issue on the true merits of a cause, and tend to bring litigated controversies to an end. Under the statute on amendments, the trial court's discretion is not immune from review on appeal, but it will not be interfered with unless palpably abused by grafting a separate and independent suit on the stem of the original proceeding. Joyce v. Growney, 154 Mo. loc. cit. 263, 55 S. W. 466. Speaking to the right to amend, this court through Bliss, J. (Allen v. Ranson, 44 Mo. loc. cit. 267, 100 Am. Dec. 282), said: "This is necessarily so much a matter of discretion in the court trying the case that we must presume that discretion was soundly exercised unless the contrary is shown by a full exhibit." That statute reads (section 1848, R. S. 1909): "The court may, at any time before final judgment, in...